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KARNATAKA HIGH COURT
H.T. Narendra Prasad and Rajendra Badamikar, JJ.
State of Karnataka and Anr. —Appellants
versus
Mallikarjuna Kadappa Patil and Ors. —Respondents
Crl.A.Nos.100115 of 2018 and 100022 of 2018
Decided on 21.4.2022
Criminal Procedure code, 1973 – Sections 378(1) and (3). 372 – Indian Penal Code, 1860 – Sections 302 and 201 – Murder – Appeal against acquittal – Delay in recording of witnesses – Circumstantial Evidence – missing links in the Chain of circumstances – guilt of accused not proved beyond doubt – Whether the judgment of acquittal passed by the Trail Court is perverse, capricious and erroneous – In the instant case there is inordinate delay of more than one year in recording the statements of witnesses, especially last seen theory and that is not properly explained – Further, considering the lapses in this regard and missing links in the chain of circumstances, the Trial Court has acquitted the accused – In the instant case, chain of circumstances are incomplete and motive is not proved. The evidence of PW-17, PW-18 and PW-23 does not inspire the confidence of the Court and there is inordinate delay in recording the statements of all these witnesses. Further, PW-17 and PW-18 are close relatives of the deceased and they appear to be planted. Further, PW-17 has denied giving statement as per Exs.D-1 and D2 – Looking to these facts and circumstances, it is evident that prosecution has miserable failed to bring home the guilt of the accused beyond all reasonable doubt – Thus, Learned Sessions Judge has properly appreciated the oral and documentary evidence in this regard and has arrived at a just conclusion – Under these circumstances, the judgment of acquittal passed by the Trial Court does not suffer from any perversity or illegality so as to warrant any interference by this Court – Appeals dismissed, Acquittal justified. [Para 34].
(ii) Criminal Procedure Code, 1973 – Section 378(1) and (3). 372 – Indian Penal Code, 1860 – Sections 302 and 201 – Murder – Appeal against acquittal – Powers of Appellate Court – merely because appellate Court can take another view, it cannot be a ground for reversing the judgment of acquittal and it is also observed by the Hon’ble Apex Court that when two views are possible, view favourable to the accused to be adopted. [Para 34]
(iii) Criminal Procedure Code, 1973 – Sections 378(1) and (3). 372 – Indian Penal Code, 1860 – Section 302 and 201 – Appeal against acquittal – Witnesses – Interested witnesses – Delay in recording of witnesses – Effect of – In the instant case, the prosecution is mainly relying on the evidence of PW-17, PW-18 and PW-23. PW-17 and PW-18 are close relatives of the deceased and their evidence disclose that though they assert that they have disclosed the fact of they seeing the deceased in the company of accused Nos. 1 and 2, no such statement was recorded by the Investigating Officer and no explanation is also forthcoming. Further, the statement of PW-18 was recorded after one year – There is ordinate delay in recording the statements and PW-17 and PW-18 are close relatives of the deceased. As such, they are interested witnesses. There is no proper explanation for delay in recording statement of the witnesses. The entire case is based on the circumstantial evidence. The prosecution is also trying to make out a case of extra-judicial confession but it is a weak type of evidence. The prosecution is required to prove the link between the chain of circumstances to prove the guilt of the accused but in the instant case, no such material evidence is forthcoming. [Paras 29, 30]
Result: Appeal dismissed.
JUDGMENT
Rajendra Badamikar, J.—These two appeals are filed by the State and the father of the deceased against the judgment of acquittal passed by 12th Addl. District and Sessions Judge, Belagavi sitting at Gokak in S.C. No. 251/2014 dated 15.11.2017.
2. Crl.A. No. 100115/2018 is filed by the State under Section 378(1) and (3) of Cr.P.C. while Crl.A. No. 100022/2018 is filed by PW-8 under Section 372 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’, for short).
3. As both these appeals are arising out of the same judgment of acquittal, they are heard together and common order is being passed.
4. For the sake of convenience, the parties herein are referred to with their original ranks occupied by them before the trial Court.
5. Brief factual matrix leading to the case is as under:
That on Bhupal Hanji has filed a complaint with Mudalagi police station that on 27.03.2013 alleging that his land is situated near Mudalagi-Sunadholi road on bank of Ghataprabha river and he is cultivating the said land. On 27.03.2013 at about 11.00 a.m., when he was watering the sugarcane crop, he noticed people gathered near river bridge and out of curiosity, he went there and noticed that a dead body was floating there in the water. The dead body was of a male person aged about 20-30 years and the hands were tied with plastic rope and hence, he suspecting the murder, lodged a complaint which was registered in Crime No. 46/2013 for the offence punishable under Section 302 and 201 Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for short). According to the prosecution, during the course of the investigation, it is revealed that deceased was identified as Irappa Bheemappa Kudemmi and his father subsequently alleged the motive to commit the offence stating that the deceased had illicit intimacy with the wives of accused Nos. 1 and 3 and as such, he suspected the accused No. 3 and the accused No. 3 also made extra judicial confession before him asserting that they have to got rid of his son and in the same way they are going to murder him also. Then the PW-8 has given statement in this regard before the Investigating Officer and Investigating Officer has apprehended the accused and drawn mahazar. He has also recorded the statement of material witnesses in this regard and found that there is material evidence as against the accused and accused having committed the murder of the deceased, threw his dead body in order to screen themselves from the legal consequences. Hence, he has submitted the charge sheet on the basis of circumstantial evidence. After the submission of the charge sheet, learned Magistrate has taken cognizance of the offence and then committed the case to the Sessions Court. In the meanwhile, accused Nos. 1 and 2 were arrested and accused No. 3 obtained anticipatory bail. The accused were enlarged on bail in due course and they have appeared before the learned Sessions Judge and they were represented by the defence counsel. The prosecution papers were furnished to them. After hearing the arguments and perusing the records, the learned Sessions Judge has famed charge under Section 302 and 201 read with Section 34 of IPC against the accused and the same is read over and explained to the accused. Accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution has examined in all 30 witnesses as PW-1 to PW-30 and documents were marked as Exs.P-1 to P-49 and 8 MOs were also marked as M.O. 1 to 8. After conclusion of evidence of the prosecution, the statement of accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial and they did not choose to lead any oral evidence. However, Exs.D-1 and D-2 were got marked which are the portions of the statements said to have been given by PW-17 before the Investigating Officer
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